Thursday, August 19, 2010

Fortune Dynamic, Inc. v. Victoria's Secret (9th Cir. - Aug. 19, 2010)

How often does the Ninth Circuit refer to the attire of Britney Spears as a factual predicate for the resolution of an appeal?

The opinion reverses the grant of summary judgment to Victoria's Secret in a case in which they sold a tank top with the word "Delicious" in printed in silver cursive letters on the front of a hot pink tank top (classy!) notwithstanding the fact that plaintiff had a registered trademark for that word. The Ninth Circuit held that even though the tank top was sold in Victoria's Secret stores, which would presumably suggest that it was made by Victoria's Secret (rather than defendant), there was still a possibility of consumer confusion because people might have initially seen the tank top worn outside of a store, including by the aforementioned Ms. Spears, who was known to have worn it.

I have only three things to say about this opinion:

(1) Conduct a trademark search before you manufacture a product. Makes sense, right?

(2) Thank goodness the opinion didn't include a pictorial representation of the factual predicate to which it refers. I've been able to dig up at least one photo of Ms. Spears wearing the relevant clothing item, which she did as she left rehab in 2007. Yikes!

(3) Judge Bybee and his clerks have to get out more. His opinion says: "The record reveals [] evidence of individuals (including pop star Brittney Spears) wearing Victoria’s Secret’s 'Delicious' pink tank top on the street." But it's "Britney," not "Brittney."

I'd also say "incredible freak show" rather than "pop star," but I admit that's a matter of taste.